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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARIANO MARTINEZ, : No. 520 EDA 2015
:
Appellant :
Appeal from the PCRA Order, January 30, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010891-2007
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
DISSENTING MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED JUNE 10, 2016
I respectfully dissent. The Majority holds that appellant was likely
prejudiced by trial counsel’s failure to call appellant’s wife and daughter to
provide alibi testimony. (Majority memorandum at *13.) Specifically, the
Majority cites the fact that appellant did not have a firearm on his person,
nor was a weapon recovered from his home. (Id.) Additionally, no paraffin
test was conducted to determine whether appellant had any gunpowder
residue on his hands. (Id.) According to the Majority, “[t]he only evidence
linking [appellant] to these crimes is the testimony of other witnesses, who
gave varying descriptions of [appellant], and some of whom identified him
while he was in the back of a police vehicle.” (Id.)
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The record, however, indicates that there is more evidence linking
appellant to these crimes. In its finding of fact, the trial court determined
the following:
Detective Frank Green later arrived at the scene of
the shooting to investigate and he discovered nine
fired cartridge casings on the driveway where the
shooting occurred and one projectile in a car parked
in the driveway. It was determined that the
crime scene was the driveway in the rear of
Appellant’s residence, and a search warrant was
obtained. Two boxes of ammunition were recovered
from the second floor bedroom closet of Appellant’s
residence.[1] It was determined that Appellant did
not have a valid license to carry a firearm in
accordance with the Pennsylvania Uniform Firearms
Act.
Trial court opinion, 4/7/15 at 4-5 (emphasis added). The trial court also
indicated that there were three positive eyewitness identifications: the two
complainants, Robert Campellone and Dennis Decker, and Hugh Scott, who
“observed [appellant] running out of the driveway in a crouched posture
looking back over his shoulder, carrying a semi-automatic firearm in his right
hand.” (Id. at 4.) Campellone and Decker positively identified appellant as
one of the shooters after he was detained by the police. (Id.)
Finally, in light of the above evidence, and with great respect to the
Majority view, I fail to see how the affiants’ testimony could alter the
1
Detective Green discovered a box of .40 caliber rounds and .45 caliber
rounds in in the closet in the second floor front bedroom in appellant’s
residence. (Notes of testimony, 8/5/08 at 18-19.) A spent .40 caliber round
was discovered on the street behind 1529 East Lycoming Street, which is
adjacent to appellant’s residence at 4050 Neilson Street. (Id. at 8.)
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outcome of the trial. Here, appellant avers that his wife, Carolyn Matos, and
his 11-year-old daughter, D.F., would have provided testimony that
accounts for appellant’s whereabouts at the time of the shooting.
Specifically, both witnesses provided affidavits indicating that they were with
appellant at the time of the shooting. D.F.’s affidavit indicated that
appellant was home all day before leaving for work, and that he was
arrested “within seconds” of leaving the house. (D.F. affidavit, 7/9/12 at 1.)
Matos’ affidavit did not provide a definitive timeframe for when appellant
was arrested. She stated that she “was at the door waiving [sic] good-bye
to Mariano. My daughter, [D.F.] was also at the door with me. We looked
with horror when the police grabbed [appellant] and placed him in
handcuffs.” (Matos affidavit, 7/9/12 at 1.)
The affidavits of the potential witnesses lacked a definitive timeframe
in which appellant left his home to go to work. As the trial court noted,
“[t]he proposed alibi testimony does not place [a]ppellant at home at the
time he committed these crimes and there are three eyewitnesses to the
shooting.” (Trial court opinion, 4/7/15 at 7.)
Due to the fact that the crime scene was determined to be the
driveway in the rear of appellant’s residence, the exculpatory value of
affiants’ testimony decreases significantly. As the Commonwealth notes,
appellant’s presence at home does not preclude him from participating in the
shooting. (See Commonwealth’s brief at 9-10.) Neither Matos nor D.F.
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definitively indicate in their affidavits that appellant was inside the house
throughout the entire duration of the shooting. Therefore, I would find that
the absence of testimony from Matos and D.F. did not so prejudice appellant
as to deny him a fair trial, and that appellant’s claim lacks arguable merit.
Therefore, I respectfully dissent.
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